REBECCA GILSENAN: The crux of the decision is that although the genetic material is identical inside the body and outside the body, the human intervention involved in extracting it from the body makes it patentable material.

We're very disappointed because our starting position was that human genetic material, because it is identical, is not patentable. So we're disappointed and we're considering the judgment in some depth to decide whether or not there's grounds for an appeal and at this stage I think I can say that an appeal is likely.

WILL OCKENDEN: Melbourne based company Genetic Technologies has the exclusive licence to run the cancer tests in Australia.

However public organisations, including Westmead Hospital and the Peter MacCallum Laboratory, also screen for mutations in the patented gene.

In 2003 and again in 2008, Genetic Technologies sent legal threats to those organisations for running the cancer tests.

Genetic Technology withdrew threats of legal action after a public outcry, but now the Federal Court has ruled the patent is valid, legal action remains a possibility.

REBECCA GILSENAN: People with a history of hereditary breast cancer in their family can have the tests and find out if they have the mutations which indicate a higher propensity to develop breast cancer and then they can make decisions about how they react to that.

It might be to commence treatment; it might be to take prophylactic action, such as a mastectomy or something like that. Or it might just be very regular, you know, more regular than they otherwise would have taken screening for the development of cancer cells.

WILL OCKENDEN: In the United States, parts of the BRCA-1 patent will start to expire in 2014, but that hasn't stopped Myriad Genetics fighting a similar case in front of the US Supreme Court.

That's because the case will also decide the broader question of whether private companies can own bits of what makes up a human.

Medical research is increasingly entering the arena of genetic therapies and using targeted treatments for everything from cancer to heart disease to diabetes.

IAN OLVER: In cancer, a lot of the new tests and a lot of the new treatments are going to be related to genes and we were very keen to see this issue sorted out before we literally have hundreds of these new drugs and tests come down the pipeline.

WILL OCKENDEN: And what if it isn't sorted out?

IAN OLVER: Well we'd have the same situation where you could hold a monopoly over a test, you could be granted a monopoly over a gene, which could mean that that restricts research and development of that gene.

And that's the, the consequence is that there may not be, the research may not happen as quickly and of course the tests may have limited availability, either because of cost or just one lab doing it.

WILL OCKENDEN: Genetic Technologies and Myriad Genetics were asked to comment, but neither have returned phone calls or emails.